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News@Law, 07/05/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

U.S. News & World Report
A Reversal of Fortune
An op-ed by Tomiko Brown-Nagin. In a stunning win for the University of Texas, the U.S. Supreme Court last week rejected Abigail Fisher's challenge to the university's affirmative action program. The court's decision is a striking reversal of fortune for affirmative action's critics. Just a few years ago, affirmative action appeared doomed. The first time Fisher v. the University of Texas was heard (known as Fisher I), the court in a 7-2 vote vacated an appellate court's decision upholding the very same admissions policy at issue in the matter decided last week (known as Fisher II). The justices ordered more exacting judicial scrutiny of Texas' race-conscious system. Fisher I sent a strong signal to the University of Texas and universities with similar admission systems: Seriously consider "race-neutral" alternatives to affirmative action, or else federal courts would strike down unnecessary – and thus unconstitutional – race-sensitive programs. Entirely consistent with the Roberts court's school desegregation and voting rights decisions, Fisher I signaled that race-conscious decision-making by government had run its course.Against that backdrop, Fisher II was an upset victory for the University of Texas. What accounts for the court's about-face? More pointedly, what caused Justice Kennedy – the court's swing vote and a vocal skeptic of race-conscious state action until now – to change course? The underlying facts and the law shaped the outcome, but race and legacy likely mattered as well.
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The Guardian
America’s deadliest prosecutors: five lawyers, 440 death sentences
...As head prosecutors in their counties, just five individuals have been responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who are currently awaiting execution in the US, it is equivalent to one out of every seven. Or express the figure another way: of the 8,038 death sentences handed down since the death penalty was restarted in the modern era 40 years ago this week, some one in 20 of them have been the responsibility of those five district attorneys alone. The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman.
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Bloomberg
Facebook Is Bad for Democracy
An op-ed by Cass Sunstein. Facebook has a lot to learn from John Stuart Mill, one of history’s greatest thinkers about freedom and democracy. In 1834, Mill wrote, “It is hardly possible to overstate the value, in the present low state of human improvement, of placing human beings in contact with other persons dissimilar to themselves, and with modes of thought and action unlike those with which they are familiar. . . . Such communication has always been, and is peculiarly in the present age, one of the primary sources of progress.” Last week Facebook announced a change in its News Feed service, designed to put human beings in contact with people similar to themselves, and with modes of thought and action like those with which they are familiar. That is not progress.
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Backchannel
Dear Landlord: Don’t Rip Me Off When it Comes To Internet Access
An op-ed by Susan Crawford. I live in an apartment. Chances are good that you do, too: Tens of millions of Americans live in apartment buildings, and in medium-to-large cities these structures account for between a quarter and a half of all housing units. More people are renting these days than ever before. And when you move into an apartment, you need the essentials: Water. Heat. And Internet access. Water and heat are regulated utilities. But when it comes to Internet access, people in apartments (called Multiple Dwelling Units, or MDUs) often have the worst of both worlds: all the limitations of a utility framework — no competition, no choices — with zero protections for consumers. That means unconstrained pricing. Network operators like Comcast, Time Warner Cable, and AT&T, in cahoots with developers and landlords, routinely use a breathtaking array of kickbacks, lawyerly games of Twister, blunt threats, and downright illegal activities to lock up buildings in exclusive arrangements.
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NPR
7 Takeaways, 14 Top Cases From A Short-Handed High Court
An article by Ron Elving and Nadia Farjood `18. As the Supreme Court's term comes to an end, here are some takeaways: The signal event in the 2015-2016 term was not a decision but a death. The court lost its longest-serving current member, Antonin Scalia, who died in February at age 79. Scalia had been appointed by President Ronald Reagan in 1986 and had long been the court's intellectual anchor on the right. Scalia strove to read the Constitution as written and resisted efforts to expand its meaning or intent. His absence from a closely divided court led to a number of 4-4 ties, which allowed the last decision by lower courts to stand. Harder to quantify was the difference Scalia's absence made to the other justices' thinking and decision making.
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ProMarket
Horizontal Shareholding, Antitrust, Growth and Inequality
Corporate profits are at record highs, economic growth is low, formation of new companies has been low for years, and inequality is close to Gilded Age levels. Professor Einer Elhauge from Harvard Law School believes that all these phenomena can at least partly be explained by a common problem. To prove his point he combines very recent empirical and theoretical economics literature that has been gaining attention in the last few years with some insight into regulatory activities that go back more than 70 years.
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The Wall Street Journal
Prospective Hershey Suitors Face Numerous Unusual Hurdles
Snack maker Mondelez International Inc. or any other potential bidder for Hershey Co. is up against not only a board that indicated it doesn’t want to sell, but a secretive, controlling shareholder—and the state’s top law officer. Mondelez, whose roughly $23 billion bid was quickly rebuffed this week, is expected to continue fighting for a union...Other food makers, including Kellogg Co. and Campbell Soup Co. , have significant ownership by family and trusts, but Hershey is further subject to a state law that requires the top law-enforcement official to green light the sale of any company controlled by a charitable trust.The law is a “public policy tragedy,” according to Robert Sitkoff, a Harvard Law School professor who has studied the trust. He said that diversifying the trust’s portfolio would benefit the school and community but said he thinks any deal would face difficulties.
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Bloomberg
Justice Kennedy Turns Into a Liberal
An op-ed by Noah Feldman. Supreme Court Justice Anthony Kennedy’s vote to reaffirm the validity of affirmative action in higher education admissions and to give bite to abortion rights mark the endpoint of his near-complete transformation into a constitutional liberal. Last year’s gay marriage decision, which Kennedy wrote, was his high-water mark as a creative inventor of new constitutional rights. But Kennedy had expressed skepticism of affirmative action in the past. And while his vote in the 1992 Casey v. Planned Parenthood had blocked Roe v. Wade from being overturned, it weakened Roe’s rights-oriented logic. For Kennedy to write the opinion that will become the new affirmative action precedent, and to join the opinion that makes cost-benefit analysis the new measure of whether state laws violate abortion rights, suggests adherence to a liberal constitutional agenda.
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Bloomberg
When Outrage Clouds Political Judgment, in U.K. and Beyond
An op-ed by Cass Sunstein. Whether or not it was justified, Britain's vote to leave the European Union was rooted, in large part, in a widespread sense of outrage. To understand the underlying political psychology, and see how to respond to it, it’s important to know something about outrage in general. A few years ago, Daniel Kahneman of Princeton, David Schkade of the University of San Diego and I teamed up to study how ordinary people think about punishment. We looked in particular at punitive damages, which juries award in the face of egregious misconduct -- say, when tobacco companies have hidden information about the health risks of smoking, or when a manufacturer has sold toys that it knows are dangerous to children. One important thing we learned was that people’s judgments are driven mainly by outrage.
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Inside Climate News
Judge’s Ruling to Halt Fracking Regs Could Pose a Broader Threat to Federal Oversight
A federal judge in Wyoming recently struck down Bureau of Land Management rules to regulate hydraulic fracturing on public and tribal lands. But while the fate of the rules is far from final—with the Obama administration immediately indicating it would appeal—the implications of the controversial decision could extend far beyond fracking and the BLM, according to environmental, legal and policy experts. In the decision, released last week, U.S. District Judge Scott Skavdahl stated the BLM, which is overseen by the U.S. Department of the Interior, has no authority to regulate the most widely used process for extracting oil and gas resources on publicly owned land..."Congress probably didn't have in mind bungee jumping or Burning Man when it gave BLM authority over public lands," said Kate Konschnik, a lecturer at Harvard Law School . But that hasn't stopped BLM from managing these activities and events as they've come up. But this ruling challenges this logic, said Konschnik, emphasizing that "hydraulic fracturing" is not directly named in BLM's authorizing statutes as part of the evidence cited for why the agency can't regulate the process.
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Harvard Gazette
Strong statement on abortion access
The Supreme Court issued a historic decision Monday, weighing in again in the nation’s fractious abortion debate. In a 5-3 ruling, the court overturned a Texas law requiring that abortion clinics maintain hospital-like standards at their facilities as well as admitting privileges at local hospitals. Pro-life activists argued that the rules were aimed at protecting women’s health, but those in the pro-choice camp countered that the law left many abortion clinics with no choice but to shut down and infringed on women’s constitutional rights...Harvard Law School’s I. Glenn Cohen, a professor of law and faculty director at the School’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, spoke with the Gazette about the ruling. Cohen filed an amicus brief in support of the court’s decision.
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The Guardian
How the supreme court’s tilt to the left rests on conservative Anthony Kennedy
When Judge Anthony Kennedy was put forward for the supreme court by President Ronald Reagan, whose previous two nominations had been rejected, he was asked whether he had ever smoked marijuana. “No,” he insisted, “firmly no.” Kennedy was a safe pair of hands. But in the just ended term, dominated by the death of fellow Catholic and Reagan appointee Antonin Scalia, he has emerged as the pivotal figure and surprised many by tilting America’s highest court to the left...“He’s not easy to predict and there are those who believe that’s a good thing for a judge, that the court has been too polarised for a long time,” said Nancy Gertner, a retired federal judge who now teaches at Harvard Law School.
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Bloomberg
Voting Ban for Ex-Cons Is a Lifetime Sentence
An op-ed by Noah Feldman. Most states ban felons from voting while in prison, and 10 provide that the prohibition can become permanent. Is this relic of common-law tradition constitutional in the modern age? A reluctant and divided Iowa Supreme Court has declined to overturn felon disenfranchisement. But even the majority opinion managed to suggest that in the future, the constitutional answer should be different. Other courts will be listening. Over time, such bans on those who have served their sentences can and should be overruled.
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